Land and Environment Court New South Wales Medium Neutral Citation: Nader v Inner West Council [2022] NSWLEC 1314 Hearing dates: Conciliation conference on 31 May 2022, 1 and 6 June 2022 Date of orders: 21 June 2022 Decision date: 21 June 2022 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders that: (1) The appeal is upheld. (2) Development consent is granted to Development Application No. DA/2021/0721, for the demolition of existing building, subdivision of land into 2 Torrens title allotments and construction of a 3 storey dwelling house on each allotment on land legally described as Lot 6 Section H in DP726, known as 72 Yelverton Street, Sydenham, subject to the conditions at Annexure A. Catchwords: DEVELOPMENT APPEAL – residential development – Torrens title subdivision – ANEF contour - conciliation conference – agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, Sch 1, cl 55 Land and Environment Court Act 1979, s 34 Marrickville Local Environmental Plan 2011, cl 4.3, 4.4, 6.1, 6.5 Texts Cited: Draft Inner West Local Environmental Plan 2020 Category: Principal judgment Parties: Michael Nader (Applicant) Inner West Council (Respondent) Representation: Counsel: Dr J Smith (Applicant) Mr H Grace (Respondent) Solicitors: Swaab Lawyers (Applicant) Inner West Council (Respondent) File Number(s): 2022/38291 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application DA202100721 seeking development consent for the demolition of the existing dwelling, Torrens title subdivision into 2 lots and construction of a 3 storey dwelling house on each new lot (the Proposed Development) at 72 Yelverton Street, Sydenham legally described as Lot 6 in DP 726 (the Site). 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 31 May 2022. I have presided over the conciliation conference. 3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the provisions of the Marrickville Local Environmental Plan 2011 (MLEP). The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement. I address the jurisdictional prerequisites as provided by the parties below. 6. The development works are for the purpose of subdivision and dwelling houses which is permissible within the R2 Low Density Residential zone under the MLEP. 7. The Proposed Development does not exceed the maximum height for the land established by in the conjunction of cl 4.3 of the MLEP and the Height of Buildings Map, being 9.5m. 8. The Site is subject to a base FSR control of 0.60:1 pursuant to cl 4.4(2) of the MLEP (see MLEP 2011 Floor Space Ratio Map - Sheet FSR_003). However, pursuant to cl 4.4(2A) of the MLEP development for the purposes of semi-detached dwellings on land labelled "F" on the Floor Space Ratio Map is not to exceed to relevant floor space ratio determined in accordance with the Table to the subclause. The Site is labelled "F" and because the development results in 2 development lots, each with a site area of less than 150 square metres, the applicable FSR control is 1.1:1. The Proposed Development, as amended, complies with this control on each of the 2 lots, once subdivided. 9. The Site is not identified on the Acid Sulfate Soils Map as being Class 1, 2, 3, 4 or 5 land: see, Acid Sulfate Soils Map - Sheet ASS_003. Accordingly, an acid sulfate soils management plan is not required pursuant to cl 6.1 of the MLEP. 10. The Draft Inner West Local Environmental Plan 2020 (Draft IWLEP 2020) was placed on public exhibition commencing on 16 March 2020 and accordingly is a matter for consideration in the assessment of the application under Section 4.15(1)(a)(ii) of the EPA Act. Under the provisions of Draft IWLEP 2020 a change is proposed to the objectives of the R2 zone to include the following: "To provide housing that is compatible with the character, style, orientation and pattern of surrounding buildings, streetscapes, works and landscaped areas. To provide landscaped areas for the use and enjoyment of existing and future residents. To ensure that subdivision creates lots of regular shapes that are complementary to, and compatible with, the character, style, orientation and pattern of the surrounding area. To protect and enhance the amenity of existing and future residents and the neighbourhood." 1. The applicant relies on the Statement of Environmental Effect (SEE) dated 10 August 2021 filed with the Class 1 Application and having regard to the matters at [4.5.1] to [4.5.4] of the SEE, the Court is be satisfied that the proposed development is consistent with these objectives. 2. The Site is land that: 1. is near the Kingsford Smith Airport and in an ANEF Contour of 20 or greater (cl 6.5(2)(a), MLEP); 2. is likely to be adversely affected by aircraft noise: MLEP, 6.5(2)(b); and, 3. involves the erection of a new building: MLEP, 6.5(2)(c)(i) 4. and therefore the provisions of cl 6.5 of the MLEP apply. ANEF contour is defined in cl 6.5 MLEP as follows: ANEF contour means a noise exposure contour shown as an ANEF contour on the Noise Exposure Forecast Contour Map for the Kingsford Smith Airport prepared by the Department of the Commonwealth responsible for airports. 1. Before determining a development application for development to which cl 6.5 applies, the consent authority must: 1. consider whether the development will result in the creation of a new dwelling, or an increase in the number of dwellings or people affected by aircraft noise: MLEP, cl 6.5(3)(a); 2. consider the location of the development in relation to the criteria set out in Table 2.1 (Building Site Acceptability Based on ANEF Zones) in AS 2021:2015: MLEP, cl 6.5(3)(b); and, 3. be satisfied the development will meet the indoor design sound levels shown in Table 3.3 (Indoor Design Sound Levels for Determination of Aircraft Noise Reduction) in AS 2021:2015: MLEP, cl 6.5(3)(c). 1. According to Note 4 to Table 2.1 (Building Site Acceptability Based on ANEF Zones) in AS 2021:2015, "the effect of aircraft noise on outdoor areas associated with the building should be considered" because the Proposed Development is for a residence. Acoustic, Vibration and Noise prepared an acoustic report for the purposes of cl 6.4 of the MLEP 2011 entitled "Acoustic Report – Aircraft Noise" dated 17 June 2021. PWNA has also prepared a supplementary report dated 19 May 2022. If the DA is approved subject to the conditions proposed by the parties, the development will meet the indoor design sound levels shown in Table 3.3 (Indoor Design Sound Levels for Determination of Aircraft Noise Reduction) in AS 2021:2015. If the DA is approved subject to the conditions proposed by the parties, the development will provide appropriate mitigation measures to ensure a reasonable level of amenity can be provided in part of the private open space. 2. The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Sch 1 of the Environmental Planning and Assessment Regulation 2000 3. The applicant is not required to renotify the modified DA under Council's Community Engagement Framework, adopted November 2019, because the amendments have the same or lesser impact as the original application. I am satisfied that the amendments are beneficial in that the amendments improve internal and external amenity by providing greater aircraft noise mitigation measures and, compared with the original DA, increased solar access for adjacent properties. 4. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons given by the parties as I have summarised above in this judgment. 5. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. Notations 1. The Court notes that the Council, as the relevant consent authority, has agreed pursuant to cl.55 of the Environment Planning and Assessment Regulation 2000, to amend Development Application No. DA18/21, with the amended plans and documents uploaded on the NSW Planning Portal on 10 June 2022 filed with the Court on 10 June 2022 as listed as follows: Drawing No. and Revision/Issue Title Prepared by Date 1. Architectural plans LEC 101, Issue L Ground Floor plan Cracknell Lonergan Architects 1 June 2022 LEC 102, Issue L First Floor Plan LEC 103, Issue L Attic Floor Plan LEC 104, Issue L Roof Floor Plan LEC 201, Issue L Northern Elevation (Yelverton Street) LEC 202, Issue L East & West Elevations (Side) LEC 203, Issue L Southern Elevation (Rear) LEC 301, Issue L Longitudinal Section LEC 302, Issue L Longitudinal Section LEC 401, Issue L Areas Schedule LEC 402, Issue L Lot Subdivision Plan File No. 1736B.DWG, Revision 2 Detail & Level Survey G & R Surveying Services Pty Ltd 26 April 2022 N/A Acoustic Memorandum Pulse White Noise Acoustics 19 May 2022 1214951M_02 BASIX LC Consulting Engineers 3 June 2022 Orders 1. The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to Development Application No. DA/2021/0721, for the demolition of existing building, subdivision of land into 2 Torrens title allotments and construction of a 3 storey dwelling house on each allotment on land legally described as Lot 6 Section H in DP726, known as 72 Yelverton Street, Sydenham, subject to the conditions at Annexure A. ………………………. E Espinosa Commissioner of the Court Annexure A (271446, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 June 2022